Agence France-Presse Claims Twitter’s Terms of Use Authorize Its Use of Photographs Posted to TwitPic — Agence France-Presse v. Morel

The Agence France-Presse (AFP) is involved in litigation over photographs it acquired through Twitter. This could turn into a debacle for AFP, if it hasn’t already reached that point.

Background: As described in the photographer’s pleadings, Daniel Morel is a photographer who has significant experience working as a photojournalist in Haiti. In the aftermath of the earthquake, he took photographs. He then uploaded (through the help of a friend) some photographs to TwitPic. Another photographer based in the Dominican Republic (Lisandro Suero) apparently copied the images to his own TwitPic account and then purported to license the images. [correction: Suero is not a photographer and provided as contact information, a Dominican phone number (which would not work in Haiti).]

AFP obtained these images (through what it thought was a license from Suero), used the images itself, and then licensed the images to Getty for further distribution. Many publications ran the photos and credited AFP/Suero. Morel got wind of this and started sending around cease and desist letters. AFP then filed a declaratory judgment action asserting commercial defamation and seeking a declaration of non-infringement. Its argument on the issue of whether it had permission to use the photos was that AFP did indeed have permission, and this permission was based on a license contained in the Twitter terms of service! Morel turned around and filed counterclaims for infringement. (A bunch of other media entities are all embroiled in the dispute and they’ve been indemnified by AFP.)

Thoughts: As an initial matter, it’s worth mentioning that if someone is found to have infringed, their good faith (while relevant to damages) is irrelevant to infringement. AFP’s request for a finding of non-infringement does not argue that it obtained some sort of license from Suero that it turned out Suero was not capable of granting. Instead AFP argues that “by posting his photographs on Twitter, Mr. Morel was granting the requisite license to Twitter and third parties to use, copy, publish, display and distribute those photographs.” There are two basic problems with AFP’s position (that it obtained a license through the posting of images through Twitter).

First, as Mike Masnick at Techdirt notes, the images were uploaded to TwitPic, and not Twitter. These are two separate companies, and more importantly, their terms of use differ. TwitPic’s terms of use are much more end user friendly. (At some point in the upload process, TwitPic says that the use of TwitPic is “subject to” Twitter’s terms of service. To say the least, it’s unclear which terms of service apply, and the average end user would most certainly point to TwitPic’s terms of service if asked as to which set of terms apply.)

Second, even assuming Morel had uploaded the photos to Twitter, does AFP really believe that uploading the images equals granting a license to AFP to freely disseminate the images outside of Twitter’s ecosystem, and for AFP to authorize third parties to disseminate the images? There’s nothing in Twitter’s terms of use which constitutes an automatic license to third parties to distribute content outside of Twitter’s ecosystem. The terms say only that anyone who uploads content to Twitter “grant[s] [Twitter] a . . . license . . . to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such [c]ontent in any and all media or distribution methods . . . .” The terms also provide that:

[the license to Twitter] includes the right for Twitter to make such [c]ontent available to other companies, organizations or individuals who partner with Twitter for the syndication, broadcast, distribution or publication of such [c]ontent on other media and services.

So, Twitter can license the content to its third party partners, but Twitter obviously didn’t grant an express license to AFP, otherwise AFP would have argued that this was the case. The idea that AFP could somehow rely on the default Twitter terms (without separate authorization from Twitter) to publish content it finds on Twitter outside of the Twitter ecosystem doesn’t even pass the laugh test. Someone should have nuked this argument before it was put on paper.

[A sidenote on the implied license issue. There’s a big difference between “embedding” content or hot-linking — which courts would probably find is not infringing, based on application of the “server test” — and actually downloading/copying content to your own servers. The key question in this context is where is the content hosted. Check out Professor Goldman’s post on Perfect 10 v. Google and Amazon, as well as this post by Fred von Lohmann of the EFF for an explanation of the server test as it’s been treated by the Ninth Circuit. I haven’t taken a close look at Twitter’s latest “embedded tweets” feature, but I would expect that as with embedded YouTube videos, there’s no serious question of infringement here. There’s a world of difference between the embedded Tweets feature which Twitter recently rolled out, and what AFP did here.]

Equally as important, AFP is making an argument here which is squarely at odds with positions it has taken in the past. (As Techdirt notes, AFP sued Google in 2005 for linking to AFP stories.) Does AFP really want to argue that somehow posting something on a website which has a broad terms of use is sufficient for third parties to use whatever is posted? It doesn’t seem that AFP has a big presence on the social web, but I can just see someone arguing in response to an infringement claim asserted by AFP that AFP granted a license through one of their employees uploading, posting, or even linking to content on a social website.

Finally, there’s the terms of service issue. Courts are pretty willing to enforce online terms, but of all the people to raise an argument that the terms should not be enforced because he didn’t read and understand them, certainly, someone struggling to get online in the immediate aftermath of the Haiti earthquake stands a better chance than most other people.

The equities of the situation are pretty bleak here for AFP. If you read through Morel’s complaint, it paints a pretty compelling picture of someone who risked life and limb to take pictures in a disaster zone, and uploaded the pictures. The big bad media company then comes along, starts trafficking in the images, then turns around and sues the guy for commercial defamation? Best of luck to AFP on making that argument in front of a jury.

Takeaways:

From the lawyer’s standpoint, obviously figuring out which terms of use apply is critical. Whether in litigation or on the transactional side, it’s important to go through the transaction process. It’s tough to say what happened here, but repeatedly referencing Twitter’s terms of service without mentioning TwitPic doesn’t engender much faith in AFP’s position.

The bigger lesson may be for AFP and others who are working in social media. I’m willing to bet that AFP’s usual due diligence standards were relaxed because the AFP employee contacted Suero through Twitter. After all, Suero had a “verified account.” (I’m kidding about the verified account, it was actually a faux verified account, but that’s not something a casual Twitter would necessarily pick up on.)

A lesson for content creators as well. Uploading content to social networking websites can affect your legal rights. I don’t think they will be determinative in this particular instance, but it’s something to keep in mind.

Finally, for Twitter, third parties seem to be confused as to the scope of the license granted in the Twitter terms of service. Whether this is due to confusion around some sort of perceived relationship between Twitter and TwitPic, or for some other reason, this is probably worth clarifying, particularly given the new feature that Twitter just rolled out. In general, Twitter probably wants to encourage broad usage within its ecosystem (such as through its embedded tweets feature) but require one-off licenses when used outside of the ecosystem (such as when someone compiles a list of Tweets and includes them in a printed book).